Citation Nr: 0516699
Decision Date: 06/20/05 Archive Date: 06/27/05
DOCKET NO. 04-03 744 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Eric S. Leboff, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1963 until
May 1968 and from April 1991 until August 1991. He died on
December [redacted], 1998. The appellant is his widow.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana.
FINDINGS OF FACT
1. The veteran died on December [redacted], 1998. The certificate
of death listed the immediate cause of death as squamous cell
carcinoma of the tongue; there were no other significant
conditions contributing to death.
2. At the time of death, the veteran was not service-
connected for any disability.
3. There is no competent medical evidence of record
demonstrating a causal link between the veteran's fatal
squamous cell carcinoma of the tongue and his active service.
CONCLUSION OF LAW
The criteria for service connection for the cause of the
veteran's death have not been met. 38 U.S.C.A. §§ 1103,
1310, 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§
3.303, 3.307, 3.309, 3.310, 3.312 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA letters issued in January 2003 and February 2004 apprised
the appellant of the information and evidence necessary to
substantiate her claim. Such correspondence also apprised
her as to which information and evidence, if any, that she is
to provide, and which information and evidence, if any, VA
will attempt to obtain on her behalf. She was also advised
to send any evidence in her possession, pertinent to the
appeal, to VA. As such, the Board finds that the
correspondence satisfied VA's duty to notify the appellant,
as required by Quartuccio v. Principi, 16 Vet. App. 183
(2002), 38 U.S.C.A. § 5103, and 38 C.F.R. § 3.159 (2004).
It is also noted that a recent case of the United States
Court of Appeals for Veterans Claims (Court) held that
compliance with 38 U.S.C.A. § 5103 required that the VCAA
notice requirement be accomplished prior to an initial
unfavorable determination by the agency of original
jurisdiction. See Pelegrini v. Principi, 18 Vet App 112
(2004) (Pelegrini II). However, in the present case, the
appellant's claim was initially denied prior to the issuance
of appropriate VCAA notice.
Because adequate VCAA notice in this case was not provided to
the claimant prior to the initial AOJ adjudication denying
the claim, the timing of the notice does not comply with the
express requirements of the law as found by the Court in
Pelegrini. While the Court did not specify how the Secretary
can properly cure a defect in the timing of the notice, it
did leave open the possibility that a notice error of this
kind may be non-prejudicial to a claimant. There is no basis
for concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication. See Mayfield v. Nicholson, No. 02-1077 (U.S.
Vet. App. April 14, 2005).
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate
decision and becomes the single and sole decision of the
Secretary in the matter under consideration. See 38 C.F.R. §
20.1104. Further, a claimant is not compelled under 38
U.S.C. § 5108 to proffer new and material evidence simply
because an AOJ decision is appealed to the Board. Rather, it
is only after a decision of either the AOJ or the Board
becomes final that a claimant has to surmount the reopening
hurdle.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the claimant was not given prior
to the first AOJ adjudication of the claim, the notice was
provided by the AOJ prior to the transfer and certification
of her case to the Board, and the content of the notice fully
complied with the requirements of 38 U.S.C. § 5103(a) and 38
C.F.R. § 3.159(b). The appellant has been provided with
every opportunity to submit evidence and argument in support
of her claim, and to respond to VA notices. Therefore, not
withstanding Pelegrini II, to decide the appeal would not be
prejudicial error to her.
The Court in Pelegrini II also held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b) must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim. This new "fourth element" of the
notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). See VAOPGCPREC 01-2004. As discussed above,
the Board has found that the appellant was provided every
opportunity to identify and submit evidence in support of her
claim.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error). In this case, because
each of the four content requirements of a VCAA notice has
been fully satisfied, any deficiency as to the timing of VCAA
notice to the appellant is harmless error.
Duty to Assist
With regard to the duty to assist, the claims file contains
the veteran's service medical records. Also of record are
reports of private post service treatment and examination.
Additionally, the appellant's statements in support of her
claim are affiliated with the claims folder. The Board has
carefully reviewed such statements and concludes that she has
not identified further evidence not already of record. The
Board has also perused the medical records for references to
additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the appellant's claim.
Further regarding the duty to assist, the law holds that VA
will provide a clinical assessment which includes a review of
the evidence of record if VA determines it is necessary to
decide the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38
C.F.R. § 3.159 (2003). A clinical assessment is deemed
"necessary" if the evidence of record (lay or medical)
includes competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's active military, naval, or
air service; but does not contain sufficient medical evidence
for the Secretary to make a decision on the claim.
38 U.S.C.A. §5103A(d)(2).
Here, the evidence of record does not demonstrate any in-
service complaints or treatment relating to squamous cell
carcinoma, nor is such disease demonstrated any time
proximate to discharge from service. As such, there is no
indication that the disability may be associated with the
claimant's active service. Thus, a medical opinion is not
necessary under 38 U.S.C.A. §5103A(d)(2).
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the appellant in developing the facts
pertinent to her claim. Essentially, all available evidence
that could substantiate the claim has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
Relevant law and regulations
Service connection- in general
According to the law, service connection is warranted if it
is shown that a veteran has a disability resulting from an
injury incurred or a disease contracted in the line of duty,
or for aggravation of a preexisting injury or disease in
active military service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2004). Service connection may also be
granted for any disease diagnosed after discharge when all of
the evidence establishes that the disease was incurred in
service. See 38 C.F.R. § 3.303(d).
"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
Pond v. West, 12 Vet. App. 341, 346 (1999). Where the
determinative issue involves a medical diagnosis, competent
medical evidence is required. This burden typically cannot
be met by lay testimony because lay persons are not competent
to offer medical opinions. Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).
Presumptive service connection- chronic diseases
Where a veteran served 90 days or more during a period of
war, and malignant tumors become manifest to a degree of 10
percent or more within one year from date of termination of
such service, such disease shall be presumed to have been
incurred in or aggravated by service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R.§§
3.307, 3.309 (2004).
Presumptive service connection- herbicide exposure
For purposes of establishing service connection for a
disability resulting from exposure to an herbicide agent, a
veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962 and ending on May 7, 1975 shall be
presumed to have been exposed during such service to an
herbicide agent, such as Agent Orange, unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 U.S.C.A. §
1116(f). 38 C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 U.S.C.A. §
1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though
there is no record of such disease during service, provided
further that the rebuttable presumption provisions of 38
U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied:
chloracne or other acneform diseases consistent with
chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's
lymphoma, acute and subacute peripheral neuropathy, type II
diabetes mellitus, porphyria cutanea tarda, prostate cancer,
respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea) and soft-tissue sarcomas (other than osteosarcoma,
chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term
"soft-tissue sarcoma" includes epithelioid sarcoma. 38
C.F.R. § 3.309(e).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, and acute
and subacute peripheral neuropathy shall have become manifest
to a degree of 10 percent or more within a year, and
respiratory cancers within thirty years, after the last date
on which the veteran was exposed to a herbicide agent during
active military, naval, or air service. 38 C.F.R. §
3.307(a)(6)(ii).
Evidence which may be considered in rebuttal of service
incurrence of a disease listed in Sec. 3.309 will be any
evidence of a nature usually accepted as competent to
indicate the time of existence or inception of disease, and
medical judgment will be exercised in making determinations
relative to the effect of intercurrent injury or disease.
The expression "affirmative evidence to the contrary" will
not be taken to require a conclusive showing, but such
showing as would, in sound medical reasoning and in the
consideration of all evidence of record, support a conclusion
that the disease was not incurred in service. 38 C.F.R.
§ 3.307(d).
The Secretary of VA has determined that there is no positive
association between exposure to herbicides and any other
condition for which the Secretary has not specifically
determined that a presumption of service connection is
warranted. See Diseases Not Associated With Exposure to
Certain Herbicide Agents, 67 Fed. Reg. 42,600, 42,604 (June
24, 2002).
Furthermore, even if a veteran does not warrant presumptive
service connection based on exposure to an herbicide agent,
he or she is not precluded from otherwise establishing
service connection by proof of direct causation. See Combee
v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
Service connection- cause of the veteran's death
To grant service connection for the cause of the veteran's
death, it must be shown that a service-connected disability
caused the death, or substantially or materially contributed
to it. A service-connected disability is one which was
incurred in or aggravated by active service, one which may be
presumed to have been incurred during such service, or one
which was proximately due to or the result of a service-
connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
In cases of service connection for the cause of death of the
veteran, the first requirement of a current disability will
always have been met, the current disability being the
condition that caused the veteran to die; however, the last
two requirements for a service-connection claim must be
supported by the record. See Carbino v. Gober, 10 Vet. App.
507, 509 (1997).
The death of a veteran will be considered as having been due
to a service-connected disability when such disability was
either the principal or contributory cause of death. 38
C.F.R. § 3.312(a) (2004).
The service-connected disability will be considered the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. 38 C.F.R. § 3.312(b) (2004).
The service-connected disability will be considered a
contributory cause of death when it contributed substantially
or materially to death, that it combined to cause death, or
that it aided or lent assistance to the production of death.
It is not sufficient to show that it casually shared in
producing death, but rather it must be shown that there was a
causal connection. 38 C.F.R. § 3.312(c) (2004).
Medical evidence is required to establish a causal connection
between service or a disability of service origin and the
veteran's death. See Van Slack v. Brown, 5 Vet. App. 499,
502 (1993).
The debilitating effects of a service-connected disability
must have made the veteran materially less capable of
resisting the fatal disease or must have had a material
influence in accelerating death. See Lathan v. Brown, 7 Vet.
App. 359 (1995).
There are primary causes of death, which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions. Even in such cases,
there may be a reasonable basis for holding that a service-
connected condition was of such severity as to have a
material influence in accelerating death.
In this situation, however, it would not generally be
reasonable to hold that a service-connected condition
accelerated death unless such condition affected a vital
organ and was of itself of a progressive or debilitating
nature. 38 C.F.R. § 3.312(c).
Factual background
Regarding the veteran's first tour of active duty, his
enlistment examination was normal. An extension examination
in December 1967 and a separation examination in May 1968
also showed normal findings. The service medical records are
absent any complaints or treatment relating to squamous cell
carcinoma.
Following release from service in May 1968, there is no
evidence of treatment or complaints relating to squamous cell
carcinoma prior to the veteran's reenlistment in the United
States Navy Reserves in April 1972. Physical examinations
during such reserve service, from 1972 to 1991, show no
findings of squamous cell carcinoma. Similarly, medical
records and examinations associated with the veteran's second
tour of active duty from April 1991 to August 1991 fail to
demonstrate any findings or complaints of such disease.
Finally, a subsequent December 1992 physical examination
associated with the veteran's reserve service was normal.
The evidence of record next shows that, beginning in June
1997, the veteran had complaints of pain on the left side of
his mouth, with a sore left tongue base area. A biopsy was
performed in July 1997, which was positive for squamous cell
carcinoma.
The veteran underwent surgery in August 1997. Specifically,
a partial glossectomy, tonsillectomy with neck dissection 1,
2, 3, and 4 was performed. A mandibular swing with plating
and a tracheotomy was also conducted at that time.
Additional surgery was performed in October 1997 and March
1998. These surgical reports did not address the etiology of
the veteran's cancer. An August 1997 treatment report
indicated that the veteran smoked about a pack of cigarettes
per day.
The veteran died at home on December [redacted], 1998. The death
certificate listed squamous cell carcinoma of the tongue as
the immediate cause of death. No other causes were listed.
Analysis
At the outset, the Board notes that direct service
connection, including on a presumptive basis, for the
veteran's terminal squamous cell carcinoma of the tongue has
not been established because competent evidence of record
does not show that the disease was present during active
service, nor manifested or aggravated within the applicable
presumptive period of one year following service for
malignant tumors. See 38 C.F.R. §§ 3.307, 3.309. Further,
there is no competent medical opinion causally relating the
veteran's fatal cancer to active duty or to any service-
connected disability. There is also no basis for a grant of
presumptive service connection as a result of herbicide
exposure, as will be explained below.
It has been contended that the veteran's squamous cell
carcinoma was incurred as a result of exposure to Agent
Orange during his service in Vietnam. In this vein, it is
noted that the veteran's military records reflect service
during the Vietnam Era (between January 9, 1962 and May 7,
1975). However, the evidence of record fails to establish
actual service in the Republic of Vietnam, as required in
order for the presumption to operate. Moreover, while
38 C.F.R. § 3.307(a)(6)(iii) notes that "(s)ervice in the
Republic of Vietnam" includes service in the waters offshore
and in other locations, such is only true if the conditions
of such service involved duty or visitation in the Republic
of Vietnam (emphasis added).
In the present case, the veteran served as a member of the
United States Navy on the U.S.S. Ranger. An excerpt from the
Dictionary of American Naval Fighting Ships, Vol. VI (1976)
indicates that such ship was deployed to the waters around
Vietnam within the period in question. However, this fact is
insufficient to establish that the veteran actually visited
the Republic of Vietnam. Moreover, bolstering this
conclusion is VAOPGCPREC 27-97 (July 23, 1997), which held
that service on a deep-water naval vessel off the shores of
Vietnam may not be considered service in the Republic of
Vietnam for purposes of 38 U.S.C. § 101(29)(A), which defines
the Vietnam era as the period beginning on February 28, 1961,
and ending on May 7, 1975, and that this was not inconsistent
with the definition of service in the Republic of Vietnam
found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97
(July 23, 1997). The
Board is bound to uphold the decisions of VA's Office of
General Counsel.
In finding that the veteran did not have service in the
Republic of Vietnam, the Board does acknowledge his military
decorations. Such awards include the Vietnam Service Medal
(VSM) and the Republic of Vietnam Campaign Medal (RVCM).
However, the Board observes that the VSM is awarded to all
members of the Armed Forces of the United States serving at
any time between July 4, 1965 and March 28, 1973 in Thailand,
Laos, or Cambodia or the airspaces thereover in direct
support of operations in Vietnam. See Manual of Military
Decorations and Awards, 6.5 (Department of Defense Manual
1348.33-M, September 1996). The RVCM is awarded to those
personnel who (1) served in the Republic of Vietnam for 6
months during a specified period; or, (2) served outside the
geographical limits of the Republic of Vietnam but
contributed direct combat support to the Republic of Vietnam
and Armed Forces for 6 months; or, (3) served in the Republic
of Vietnam or outside its geographical limits for less than 6
months but were wounded, captured or killed. Id. at 7.5.
Therefore, the receipt of these medals is not necessarily
verification of service in the Republic of Vietnam as defined
herein.
Based on the foregoing, then, the veteran is not shown to
have served in the Republic of Vietnam, and thus the
presumption for herbicides does not apply here. Moreover,
even if such service in Vietnam had been demonstrated, a
grant of presumptive service connection on the basis of
herbicide exposure would still not be justified on the facts
of record. Indeed, such presumptive service connection is
only warranted on this basis for a specific list of diseases
set forth under 38 C.F.R. § 3.309(e), to include chloracne or
other acneform diseases consistent with chloracne, Hodgkin's
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and
subacute peripheral neuropathy, type II diabetes mellitus,
porphyria cutanea tarda, prostate cancer, respiratory cancers
(cancer of the lung, bronchus, larynx, or trachea) and soft-
tissue sarcomas (other than osteosarcoma, chondrosarcoma,
Kaposi's sarcoma, or mesothelioma).
As squamous cell carcinoma is not among the diseases
recognized under 38 C.F.R. § 3.309(e), presumptive service
connection for herbicide exposure is not possible. Moreover,
there is no competent clinical opinion etiologically relating
the veteran's squamous cell carcinoma to herbicide exposure
on active duty such as to allow for a grant of service
connection by proof of direct causation as permitted by
Combee.
The Board will now consider the central claim at issue here,
that of entitlement to service connection for the cause of
the veteran's death. As stated previously, a grant of
service connection for the cause of the death of a veteran is
warranted where the evidence establishes that a service-
connected disability was either the principal or a
contributory cause of death. Here, the veteran died of
squamous cell carcinoma of the tongue.
There is no medical evidence demonstrating that it was at
least as likely as not that the veteran's fatal squamous cell
carcinoma of the tongue was caused by active service (to
include herbicide exposure) or by a service-connected
disability. Such opinion has been expressed by the
appellant, but she has not been shown to possess the
requisite training or credentials needed to render a
competent opinion as to medical causation. As such, her lay
opinion does not constitute competent medical evidence and
lacks probative value. See Routen v. Brown, 10 Vet. App.
183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v.
Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992).
In conclusion, the evidence of record fails to demonstrate
that the veteran's terminal squamous cell carcinoma was
causally related to active service or to any service-
connected disability. As such, the appellant's claim of
entitlement to service connection for the cause of the
veteran's death must be denied. As the preponderance of the
evidence is against the claim, the benefit of the doubt rule
is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs